What the “Third Wave” Means for Court Technology

By Dave Hawkins, CEO, ImageSoft

I attended the Inc. magazine GrowCo Conference in New Orleans last month. Somewhere between the seafood gumbo, the crawfish étouffée, and the jumbalaya, Steve Case of AOL fame served up a prophetic message based on his newly revised book, The Third Wave: An Entrepreneur’s Vision of the Future. The title refers to the evolution of the Internet. The First Wave fostered the creation of the Internet with the requisite infrastructure – servers, cabling, network switches, portals, service providers, and the like. Companies such as Cisco, NetGear, CompuServe, Prodigy, NetScape and America Online rose to prominence, while Microsoft, Intel, HP, Gateway, and Dell grew rapidly by virtue of the new demand for personal computers and related software.

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The Second Wave consisted of all the apps built to run on the Internet. This wave included tech firms providing new types of networking and social media services previously unavailable anywhere, such as Facebook, LinkedIn, Twitter, Instagram, Snapchat, etc. It spawned new Internet-only retailers, most notably Amazon, as well as new ways to buy things, such as the online auction service provided by eBay. At the same time, the Second Wave saw the meteoric rise of eCommerce from brick-and-mortar chains that transitioned to online retailing. Department stores, booksellers, pharmacies, and even automakers discovered they needed to forge new online identities to keep their customer bases from dissipating.

The Third Wave will involve the transformative integration of the Internet into all facets of everyday life. In the future, calling a device “Internet-enabled” will sound as silly as calling something “electricity-enabled” today. Steve Case highlighted several major arenas in which the Third Wave will bring revolutionary progress: education, healthcare, transportation, food production and city management. In healthcare, for example, Third Wave technologies will facilitate much greater precision in medicine, allowing doctors to edit genetic code using the power of genomics and data analytics. Fitness trackers will evolve into hardware and software for capturing a full range of vital signs on a daily basis, collecting and analyzing the data to alert patients and their doctors of potential health issues before they happen. When you go to see the doctor, they will already have this data to help answer their diagnostic questions such as “When did it start bothering you?” The implications for disease management, home health care, and epidemic tracking are astounding.

But what about the justice industry, which is ImageSoft’s primary area of expertise? What will the Third Wave bring in the way of improving the American justice system? Today, even courts that go “paperless” still use paper at some point in the case-processing chain. They may, for example, offer eFiling, but print the file once received, or perhaps keep it electronic until a judge needs to sign it, and then have it printed at that point. In the Third Wave, courts will seamlessly integrate tools to keep case records electronic from start to finish. On the front end, lawyers, police officers, and even self-representing litigants will have the ability to eFile documents to initiate a case, and may utilize automated document package creation to expedite their initial case filings. These tools will be particularly helpful for the poor, the disabled, the medically incapacitated, and incarcerated persons to give them much greater access to justice than is available today. New tools will also allow simple cases such as traffic violations to be handled remotely; imagine being able to contest your speeding ticket without needing to take a half day off work to go to court.


Read here how courts can stay electronic from start to finish.

 

Once a case is initiated, the documents can remain electronic throughout the court process via document management and workflow tools to enable access for all parties to a case as well as the related court personnel. Closing a case can also stay electronic, as new eSignature tools are structured to focus on speed and reduce cumbersome repetitive steps, which were impediments associated with older products.

Case cited three factors which will be of utmost importance during this Third Wave: partnerships, policy, and perseverance. As I listened to him speak, I contemplated the changes that are already taking place in the justice technology arena. Forward-thinking court systems are partnering with technology vendors to integrate best-of-breed solutions to automate all aspects of the court process. As for policy, institutes such as the Organization for the Advancement of Structured Information Standards, or OASIS, have piloted policy initiatives to standardize eFiling compliance nationwide. Through it all, perseverance will certainly be required to bring the justice system’s “late adopters” into this next wave of technological advancement.

ImageSoft is working alongside our partners Hyland (makers of OnBase for enterprise content management), Mentis (which offers aiSmartBench and other court tools), and Court Innovations (which provides Matterhorn online dispute resolution system) to reshape the court technology landscape to meet the demands of the Third Wave.

By the time I left New Orleans, I was “jazzed” thinking about the possibilities. We welcome the opportunity to collaborate with others to create a better future for our courts and their many constituents.

What do you think of Steve Case’s vision for the future?

 

Electronic Court Filing Standards: What, Why, and Where are They Headed?

This is Part 2 of 10 in the eFiling Blog Series, check out Part 1 here.

99_eFilingstandards“This tale grew in the telling…”
J.R.R. Tolkien, in his Forward to the Lord of the Rings trilogy

Tolkien’s statement is nowhere more apt than in discussing electronic court filing (ECF) standards. From a small, informal group of visionaries trying to agree on the definition and format of a handful of court terms in the late 1990’s, ECF standards, now under the auspices of standards organization OASIS, through the OASIS LegalXML Electronic Court Filing TC (Technical Committee), have grown into a full-blown specification that includes data definitions, schema, document specifications, messaging, business rules, and more.

In addition, the ECF standards, after first spawning more “global” justice, government, and universal standards, now elegantly fit within and thus are able to leverage the far more wide-ranging National Information Exchange Model (NIEM) and Global Reference Architecture (GRA) standards. Thus ECF standards not only provide a solid basis for eFiling, they provide the mechanism for broader, smoother, more extensive integration and interaction with the world within which the courts function.

Today, most procurements for eFiling, whether from a vendor or by way of development, require that the system must conform to the OASIS ECF specification, of which the most current version is ECF 4.01.  Recently IJIS, a 503(c)(3) non-profit organization providing data sharing expertise to governmental bodies, has made the IJIS Springboard Certification tools available for eFiling systems, with which courts and developers can test their systems for conformance with the OASIS ECF standard.

Why do ECF standards matter? As Jim Cabral, longtime member and current chair of the LegalXML ECF TC, observes, an E-Filing system must 1) Collect data and documents; 2) Satisfy court rules, and 3) Communicate progress. He goes on to say, “The full benefit of E-Filing is only achievable if the data and documents can be integrated into the court record with little or no intervention…. Integration between E-Filing systems and services requires common technical and functional standards for data and document interoperability….”

Viewing the standards saga as a Lord of the Rings type epic, ECF 1.0 would have been the Hobbit – really a “prequel”. On that scale, ECF 4 is probably the end of Book One – The Fellowship of the Ring. We’ve come a long, long ways. But in many respects, the journey is really only starting. In fact it may be more like Game of Thrones: It just gets more complicated and involved.

That’s because the real challenges lay at the business level. While different courts (and even different parts of the same court) share numerous similarities and commonalities of practice, the differences are still myriad and deep. Moreover, there are an infinite number of ways to implement compliant systems, depending on the types of strengths and features desired. For these reason, the OASIS ECF specification is necessarily general, flexible, and extensible, so that each court can modify and extend it to meet its particular needs, while still remaining compliant.

The down side is that not all the needs of all courts can be fully addressed at once. For instance, while major case types (civil, criminal, dissolution of marriage, etc.) are included, others are not. Likewise, while the specifications exist to electronically serve parties already on a case, original service remains outside the specification’s current scope. Payment processing creates a lot of extra work, so inclusion could yield big benefits. ECF 4.0 provides support for appellate cases; and future releases may extend to non-case related filings and administrative court matters.

The LegalXML TC is currently working on ECF 5.0, which Cabral describes as “evolutionary; not revolutionary”.   5.0 seeks to fill some gaps and add some much-desired functionality.   Specifications for Children, Youth, and Family Services matters will be included. Also, what Cabral calls “Miniature Original Service”, where original service can be made electronically on Registered Agents, is being worked on, as well as Scheduling of an Initial Hearing.

The OASIS ECF standards are open and public. The Committee hopes to have a draft of ECF 5.0 ready for public comment by the Court Technology Conference (CTC) in September, 2015. The Committee invites and seeks ideas, comments, and feedback through their public site and email.

Finally, Cabral solicits the engagement of the court community in proactively addressing the business and policy questions that the standards-setting efforts make manifest. The desire for original eService provides a good example. Even service on Registered Agents through eService will require rule, procedural, and possibly statutory changes. Expect such change proposals to be politically fraught.

The ECF standards journey has been and will continue to be long but essential. Courts will be well advised to watch, adopt, and get involved with adopting and modifying ECF standards now and into the foreseeable (and unforeseeable) future.

Coming up next: Blog 3 of 10: eFiling Blog Series – Funding

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Additional OASIS ECF 4.0 Resources:

7 Steps to Electronic Filing with Electronic Court Filing 4.0

ECF Quick Start (Video)

Confronting Court Document Retention Policy in the Era of Electronic Content

88_document retentionIn Animal House (one of my favorite movies), the trial scene has its own instructive moral. The Dean, through his smarmy hench-students, hauls the fun-loving and rule-oblivious Delta brothers into Student Court to answer for their “too numerous to name” peccadillos. The allegations are (or would be, if allowed to be heard) supported by extensive evidence, for the simple reason that most are true.

The “defense,” if it could be called that, consists of asserting that the charges REALLY constitute an attack on the American way of life.

Sounds ridiculous; and it is. Except… who hasn’t been involved in a discussion where, just as the group begins to close in on a solution, someone attaches an almost completely unrelated set of concerns and insists that those must be resolved before moving forward?

This principle came to mind as I listened to an excellent presentation at a court conference on revising and implementing policies and procedures for purging documents and files as courts move to paper on demand.

Consider: Most “legacy” record retention policies (and most record retention policies today are legacy) were promulgated at a time when the primary concern was storage space, or more accurately, the cost and lack thereof. The policies were primarily intended to make sure that records that might one day be needed again not be prematurely discarded. Indeed, most policies required that important records be indefinitely, if not permanently, retained.

Also, there is a stark difference between records retention in the commercial world and the courts, and the lines are often mistakenly blurred. In the commercial world information can be a discoverable liability, and in many cases should be purged as soon as possible. In the courts: justice, public safety and service are the primary goals, and purging is often an inhibitor.

Tellingly, there was little or no “requirement” to purge (absent case-specific court orders).

Most courts, in my experience, only embarked on purging documents when space constraints forced the issue. Otherwise, little, if anything, was ever actually destroyed. Instead, documents and files were moved into increasingly difficult to access deep storage. Generally, the difficulty was thought to be the effort required to actually go through the documents and files, identify (and confirm) what is eligible for purge, physically remove them and then securely dispose of them.

Fast forward to the present. For starters, the question of physical space is no longer an issue to paper on demand courts. Granted, there are cost and process issues with long-term content storage; but they are most certainly NOT the kind of current constraint and the level of expense providing physical space to store paper.

More importantly, using paper on demand with configurable workflow, all the identification, verification and actual purging problems can be managed in a relatively straightforward, efficient, flexible (in case rules change) and economical manner.

So, problem solved, right?

Hah! If you believe that, then I’ve got this great deal on Alaska gold mining stock, if you’re interested….

Thanks for solving the problems; but it now turns out those aren’t the problems that are at the top of anyone’s list these days. What do you MEAN you can afford to keep everything forever? People have a RIGHT to have old matters go away…

In fact, one of the many consequences of loss of the “effective inaccessibility” of paper documents is a fundamental conflict between those with an interest in keeping access to everything permanently and those with an interest in making the information as inaccessible as possible, as soon as possible.

One (fairly standard, I’ll bet) interim policy is to “publicly” delete, but internally retain (for those with authorization). Let the Rule Drafting begin for THAT one!

So, on this subject, I line up with the Deltas: We’re probably having the wrong discussion. Document “retention” and “purging” are really anachronistic concepts in an era of electronic documents and ECM. What would be far more constructive, in my humble opinion, would be to discuss how to appropriately manage all aspects of content lifecycle – including the “post-active” phases – in a paper on demand world, develop appropriate policies and design the enabling systems to allow ongoing management of content lifecycles using modern tools.

 

 

How eFiling Improves Access to Justice

trickle-down econmics

A lot of attention gets (quite properly) focused on “Access to Justice”, and the various barriers – physical, social, economic, cultural, and so on – that inhibit people’s ability to appropriately use the justice system. Of these, one major barrier has always been cost—particularly, the cost of quality legal representation.

“Everyone knows” that e-filing can save courts a lot of money (well, maybe not everyone ; but the business case has been pretty clearly proven); and that’s a real incentive to the taxpayers.

Likewise, it’s no mystery that most attorneys avidly support implementation of e-filing, for their own valid business reasons. Indeed, the legal community generally is willing to pay for e-filing in the form of surcharges and/or nominally higher filing fees, because the convenience is so much greater and the total expense of delivery of documents to the court and service on parties is so much less.

But beyond the potential benefits to taxpayers and the self-interest of the private bar, another vast, often unmentioned constituency that stands to gain more perhaps than any other: Attorney-represented court users. E-filing has the potential to greatly reduce the cost of legal representation, thereby dramatically lowering one of the classically high barriers to Access to Justice.

Having been engaged for a number of years in the private practice of law myself, and, currently, married to a hard-working Legal Assistant in a busy law firm, I have some first-hand knowledge of why legal representation is expensive while at the same time (contrary to what most people think) not all that many attorneys are getting rich providing it.

My wife’s firm handles cases in the state and federal courts. I, as a loyal spouse, dutifully listen as she unwinds every day. Interestingly, several years ago, her complaints about filing problems largely concerned her frustration with having to master the [then] “new” process of e-filing with the federal court. Nowadays, her frustration is more about the fact that the state courts have not yet implemented e-filing, and the hassle, interruption, cost, and unreliability engendered because of the need for physically filing documents with them.

Now, I know how much my wife makes; and, given her knowledge and experience, she does not come cheap. I also know that she has more to do in a day than she can ever get done. As a result, every minute she spends working on things like making sure documents get filed is one less minute she has available to spend on fee-generating activities that require her specialized experience and knowledge. All that time that she and the others in her office devote to filing gets charged, of course, to the office’s clients.

There are a myriad of other ways in which e-filing improves Access to Justice. For low-income pro se litigants, for whom filing fees have typically been waived, e-filing systems tend to be “progressive”, in that they allow low income filers and their representatives to file for free. Other improvements include the potential ability to remotely access court documents, thereby eliminating the need to travel, park, etc.; the use of smart forms attached to workflow to improve data entry speed and accuracy (particularly for pro-se filings); the ability to use a local attorney for dealings with remote courts; and so on. But the direct reduction to clients in the cost of legal services as the result of e-filing is both one of the largest and one of the least-often cited benefits to the users of the justice system.

In any discussion of “Access to Justice”, the beneficial impact of e-filing, including potential reduction in cost to those seeking access to the justice system, should be prominently featured.